Karnataka High Court
Mr. Mohandas D Shetty vs Mr. M.R Jaishankar on 7 November, 2022
Bench: Chief Justice, Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT APPEAL NO.703 OF 2022 (LB-BMP)
BETWEEN:
1 . MR. MOHANDAS D SHETTY
S/O LATE K DEJOO SHETTY
AGED ABOUT 70 YEARS, MAJOR
R/AT APARTMENT NO 501
5TH FLOOR, BRIGADE CORONET
NO 16, PALACE ROAD
BENGALURU 560052.
2 . MRS. HANNAH M
W/O MOHANDAS D SHETTY
MAJOR
R/AT APARTMENT NO 501
5TH FLOOR, BRIGADE CORONET
NO 16, PALACE ROAD
BENGALURU 560052.
...APPELLANTS
(BY SRI. SOMANNA C.P., ADVOCATE FOR
SRI. NITIN PRASAD, ADVOCATE)
AND:
1. MR. M.R JAISHANKAR
S/O RAMACHANDRA SHETTY
-2-
MAJOR
R/AT SHANTINIKETAN
15/3-1, PALACE ROAD
BENGALURU 560052.
2. BRUHAT BENGALURU MAHANAGARA PALIKE
N R SQUARE
BENGALURU 560002
REP. BY COMMISSIONER.
3. THE ASSISTANT EXECUTIVE ENGINEER
VASANTH NAGAR
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU 560052.
....RESPONDENTS
(RESPONDENT SERVED AND UNREPRESENTED)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 29/03/2022
PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.994/2012 AT ANNEXURE-A.
THIS WRIT APPEAL COMING ON FOR ORDERS THIS
DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
-3-
JUDGMENT
Heard learned counsel for the appellants.
2. The only ground urged in challenge to the
order passed by the learned Single Judge dated
29.3.2022 in W.P.No.994/2012 is the constructive
knowledge of the petitioner having received the notice
issued by the respondent- BBMP not being properly
appreciated by the learned Single Judge, is urged
before this Court.
3. Learned counsel for the appellants submitted
that the petitioner was the Managing Director of the
Developer Company- Brigade Enterprises Limited. The
learned counsel by inviting our attention to the
document placed on record viz. reply dated
18.11.2009, submitted by the petitioner to the
Assistant Executive Engineer, Vasanthnagar, Bruhat
Bengaluru Mahanagara Palike, Bengaluru in response
to the notice dated 9.12.2009, submits that the
petitioner in W.P.No.994/2012 had sufficient
knowledge of the notice as he was the Managing
Director of the said Developer Company, notice was
received by the Developer Company and reply was
also given by the Company. Now, these very facts
are not only considered by the learned Single Judge
but the contentions raised in that behalf was duly
dealt with by the learned Single Judge.
4. The learned Single Judge in the detailed
order has arrived at a conclusion that notice was
issued to the Developer Company and even though
the petitioner was the Managing Director of the
Company, the flat owned by the petitioner was not
owned by him in the capacity as the Managing
Director of the Company but it was in the individual
occupation and possession of the petitioner.
5. Necessary references are made to the
submissions. We may find place to these submissions
in paragraph 7. In paragraph 12, the learned Single
Judge in clear and unambiguous words was pleased to
observe that property is held by the petitioner in his
individual capacity and not as an office bearer of
Brigade Coronet. Then it is further observed that the
finding of the Tribunal is that the petitioner being the
Managing Director of Brigade Coronet had enough
notice and the legal head of Brigade Coronet had
replied to the notices issued were all in tune with
Section 321 of the Karnataka Municipal Corporation
Act, 1976 (for short hereinafter referred to as 'the
Act') or in consonance with the principles of natural
justice and the person holding the property is not
even made known of the deviation till an order is
passed directing demolition of the said property under
Section 321(2) of the Act.
5.1. Then in paragraph No.13, the learned
Single Judge further observed that 'the argument of
the learned Senior Counsel representing respondents
3 and 4 is accepted by the Tribunal is unacceptable
for the reason that service of notice on the person
concerned before passing an order of demolition is
mandatory. There may be no question that the
petitioner had enough notice or even aware of the
facts of the case and the legal head of Brigade
Coronet had replied to the notice, all of which will be
in compliance with the mandatory provisions of
Section 321 of the Act as it is a property that is held
by the petitioner and it is his right over the property.
Demolition of property would take away the right of
the petitioner over that property. Therefore, notice
was required to be served individually on the
petitioner. The notice should have been in the name
of the petitioner and not in the name of Brigade
Coronet.'
5.2 Then, the learned Single Judge also makes a
reference to the provision to Section 455 of the Act.
Then, again in paragraph 14, the learned Single Judge
was pleased to observed thus :
"14. The submissions of the learned
senior counsel appearing for respondents 3
and 4 run counter to law and cannot be
accepted. On this short ground that the
petitioner was not heard before any notice
under Section 321 of the Act was issued, the
order of the Tribunal and the confirmation
order passed by the BBMP impugned herein
are rendered unsustainable. It is now for the
BBMP to issue such notice, hear the parties
and pass appropriate orders. Since the petition
is being disposed of on the short ground of
want of compliance with the principles of
natural justice, plethora of judgments relied on
by both the parties to the lis are not
considered."
6. By recording these observations, the learned
Single Judge of this Court was pleased to quash and
set aside the order impugned in the writ petition and
matter was remitted back to the BBMP to issue
individual notice to the petitioner, hear the parties to
the lis and pass appropriate orders in accordance with
law. The learned Single Judge then further directed
that, while so doing the BBMP shall consider the
contention of both the parties.
7. Thus in our opinion, the learned Single Judge
by providing fair opportunity of hearing to the parties
meant thereby that even the principles of natural
justice is also directed to be followed.
8. Considering all these aspects as well as
considering the order passed by the learned Single
Judge whereby the matter is remitted back to the
respondent-BBMP for a fresh decision. By hearing the
parties, in our opinion, no prejudice is caused to the
appellants. We are unable to find any substantial
ground is raised in the present appeal in challenge to
the order passed by the learned Single Judge. The
order passed by the learned Single Judge is on the
basis of the facts of the matter and the learned Single
Judge by considering all the necessary facts as well as
the provisions, has passed a just and proper order.
The appeal, thus being devoid of merits, deserves to
be dismissed and the same is accordingly, dismissed.
In view of the dismissal of the appeal, the order
on the pending applications, if any, is not required.
The applications, accordingly are disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
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